During the course of a deposition, deposing counsel asks, “Miss Reporter, would you please mark this original document,” a printout of an e-mail, “as Exhibit 1.” You place an exhibit sticker on the document, and the attorney proceeds to question the witness regarding when the e-mail was sent, what attachments it bore, and so forth. But wait a minute. The paper bearing the exhibit sticker is not actually the “original document.” In this particular case, Exhibit 1 began life as a Microsoft Outlook electronic e-mail message. JOURNAL FOR THE REPORTING AND CAPTIONING PROFESSIONS /SEPTEMBER 2004 54 B Y N A N C Y J . JCR Contributing Editor Nancy J. Hopp, RDR, CRR, serves as court reporter liaison for Summation Legal Technologies, Inc., a litigationsupport software company. Samantha L. Miller, Esq., a former practicing attorney, is Summation’s marketing manager. So many of today’s business communications — letters, e-mails, and spreadsheets — start as electronic documents, and lawyers are using these exhibits in new ways. Are you ready? B Y N A N C Y J So many of today’s business communications — letters, e-mails, and spreadsheets — start as electronic documents, and lawyers are using these exhibits in new ways. Are you ready? During the course of a deposition, deposing counsel asks, “Miss Reporter, would you please mark this original document,” a printout of an e-mail, “as Exhibit 1.” You place an exhibit sticker on the document, and the attorney proceeds to question the witness regarding when the e-mail was sent, what attachments it bore, and so forth. But wait a minute. The paper bearing the exhibit sticker is not actually the “original document.” In this particular case, Exhibit 1 began life as a Microsoft Outlook electronic e-mail message. JCR Contributing Editor Nancy J. Hopp, RDR, CRR, serves as court reporter liaison for Summation Legal Technologies, Inc., a litigationsupport software company. Samantha L. Miller, Esq., a former practicing attorney, is Summation’s marketing manager. JOURNAL FOR THE REPORTING AND CAPTIONING PROFESSIONS /SEPTEMBER 2 0 0 4 54 http://www.jdsupra.com/post/The fact that nowadays so many business communications have their origins in electronic format — and, indeed, may ultimately never exist on paper — is leading the legal world to rethink its definition of the word document. Although not obsolete, the paper paradigm of producing and using hard-copy exhibits is morphing into an electronic model by changing the way attorneys practice law and affecting the products and services offered by reporters. The e-mail file cited above is an example of electronic evidence. Such files contain properties called metadata that are generated by software and are not visible on hard-copy printouts. For instance, Outlook e-mail messages contain underlying information disclosing the following: • Author • Recipients, including those copied and blind carbon copied • Subject • E-mail message • Date created • Date saved • Date and time sent • Date and time received • Attachments Similarly, a Microsoft Excel spreadsheet can be viewed electronically in Excel to reveal the underlying formula of a given cell, information that would not otherwise be visible in hard copy. Microsoft Word documents contain metadata that may reveal a document’s author, revision number, date created, date last saved, who last saved the file, how many revisions took place, which program (and which version of that program) was used to create the file, and total editing time, among other things. You can view a Word file’s metadata by clicking File > Properties while viewing or editing the document. (See Figure 1.) Now imagine how knowledge of this metadata would enable a techno-savvy attorney to probe and impeach a witness’s testimony regarding a document’s creation and distribution. When you consider the ubiquity of computer-generated documents, can the proliferation of electronic evidence usage at deposition and trial be far behind? In fact, several states have already revised their rules of civil procedure to incorporate electronic evidence as a medium distinct from paper.1 WHAT CONSTITUTES ELECTRONIC EVIDENCE? Several acronyms and terms exist for electronic evidence, such as EDD (Electronic Data Discovery or Electronic Document Discovery), EED (Electronic Evidence Discovery), or e-Evidence. Because electronic evidence is a relatively new topic in litigation, the industry has not yet settled on a common term to describe it. But labels aside, what exactly is electronic evidence? The most common forms of electronic evidence are file types that people work with each day in their business and personal environments, such as Word documents, e-mails, and Excel spreadsheets. However, electronic evidence can conceivably include digital audio, video or photographs, program codes, database records, voice mail, instant messages, or even global positioning system information. Writings created, exchanged, or electronically exchanged constitute electronic documents, but a document’s existence in electronic format does not necessarily make it electronic evidence. A rudimentary knowledge of computer file formats can aid in understanding this distinction. H O P P A N D S A M A N T H A L . M I L L E R JOURNAL FOR THE REPORTING AND CAPTIONING PROFESSIONS /SEPTEMBER 2004 55 Figure 1 Figure 1: Properties screen of a Word document, showing dates, times, and other statistics O P P A N D S A M A N T H A L M I L L E R The fact that nowadays so many busi-author, revision number, date created, of electronic evidence usage at deposiness communications have their origins date last saved, who last saved the file, tion and trial be far behind? In fact, sevin electronic format — and, indeed, may how many revisions took place, which eral states have already revised their rules ultimately never exist on paper — is program (and which version of that pro-of civil procedure to incorporate elecleading the legal world to rethink its def-gram) was used to create the file, and tronic evidence as a medium distinct inition of the word document. Although total editing time, among other things. from paper.1 not obsolete, the paper paradigm of pro-You can view a Word file’s metadata by ducing and using hard-copy exhibits is clicking File > Properties while viewing WHAT CONSTITUTES ELECTRONIC morphing into an electronic model by or editing the document. (See Figure 1.) EVIDENCE? changing the way attorneys practice law Several acronyms and terms exist for and affecting the products and services Figure 1 electronic evidence, such as EDD (Elecoffered by reporters. tronic Data Discovery or Electronic The e-mail file cited above is an Document Discovery), EED (Electronexample of electronic evidence. Such files ic Evidence Discovery), or e-Evidence. contain properties called metadata that are Because electronic evidence is a relativegenerated by software and are not visible ly new topic in litigation, the industry on hard-copy printouts. For instance, has not yet settled on a common term to Outlook e-mail messages contain describe it. But labels aside, what exactunderlying information disclosing the ly is electronic evidence? following: The most common forms of elec-• Author tronic evidence are file types that people • Recipients, including those copied work with each day in their business and and blind carbon copied personal environments, such as Word • Subject documents, e-mails, and Excel spread-• E-mail message sheets. However, electronic evidence can • Date created conceivably include digital audio, video • Date saved or photographs, program codes, database • Date and time sent records, voice mail, instant messages, • Date and time received Figure 1: Properties screen of a Word document, or even global positioning system infor-• Attachments showing dates, times, and other statistics mation. Writings created, exchanged, or elec-Similarly, a Microsoft Excel spread-Now imagine how knowledge of this tronically exchanged constitute electronsheet can be viewed electronically in metadata would enable a techno-savvy ic documents, but a document’s exis-Excel to reveal the underlying formula attorney to probe and impeach a wit-tence in electronic format does not of a given cell, information that would ness’s testimony regarding a document’s necessarily make it electronic evidence. not otherwise be visible in hard copy. creation and distribution. When you A rudimentary knowledge of computer Microsoft Word documents contain consider the ubiquity of computer-gen-file formats can aid in understanding this metadata that may reveal a document’s erated documents, can the proliferation distinction. JOURNAL FOR THE REPORTING AND CAPTIONING PROFESSIONS /SEPTEMBER 2 0 0 4 55 http://www.jdsupra.com/post/JOURNAL FOR THE REPORTING AND CAPTIONING PROFESSIONS /SEPTEMBER 2004 56 Native file format vs. image file format A document’s native file format is the format in which it originated. For example, a Word document in its native file format would have a DOC extension (e.g., “Hopp complaint.doc”). Table 1 gives other examples of native file format extensions. An image file format, as the term is used here, is more akin to a snapshot of a native file. Two common image formats are TIFF (Tagged Image File Format) and PDF (Portable Document Format).2 You may already be familiar with these formats if you currently scan paper exhibits for your clients. Documents in TIFF or PDF format most likely existed as paper or in a native file format before being converted into an image file using a scanner or PDF-conversion software, typically Adobe Acrobat. (See Table 2.) This conversion process is known as petrification. For purposes of this discussion, the term electronic evidence refers to documents saved in their native file formats, not image files such as TIFFs or PDFs. Once a document — or spreadsheet or e-mail — has been petrified, it is no longer in its native format, and, therefore, its original metadata cannot be viewed. Advantages and Disadvantages Much like beauty, the benefits or drawbacks of presenting evidence in a native versus a petrified format are in the eyes of the beholder. On the basis of cost and recent case law, the current trend is for the techno-savvy litigator to obtain native files in discovery and then to convert relevant native files into images only if redaction is required or the document is being introduced at trial. By initially obtaining and working with native files, the litigator can minimize scanning and copying costs, thus saving money for the client. Given this trend, it seems likely that (1) more evidence will be presented at depositions in native format, while the litigator is still trying to gauge a document’s relevance and use the metadata to his advantage and (2) the majority of evidence will still be presented at trial in an image format, given the benefits outlined next. Image files permit annotations (e.g., redactions, notes, highlighting, and other forms of marking) and are most commonly used in the courtroom with trial presentation software programs. However, when electronic evidence is converted to TIFF or PDF format and becomes an image file, the metadata that was once associated with that document is usually no longer available. This change can be good if you are producing that information, or bad if you are seeking it. In contrast, native files reveal metadata usually not found in image files or hard-copy documents. This metadata can be used in a case to reveal prior document drafts, which is handy for breachof-contract cases, and timelines (e.g., when did Smith actually open and read GLOSSARY electronic evidence — documents originating in a native, or computer-generated, format and containing metadata extension — a suffix, typically three characters long, following a “.” in a filename, which allows computer users and programs to recognize a file’s format; e.g., “resume.doc” hidden text — editorial comments or text editing changes electronically concealed from the reader image file format — a file type for displaying graphics, pictures, or petrified native files metadata — data about data; descriptive information and statistics embedded in a given computer file native file format — file format in which a computer file was created PDF (Portable Document File) — an image format created by Adobe Systems that allows users to view a file with its intended formatting without a need for the program in which the original file was created petrification — conversion of a file from its original or native format to an image format; also called “tiffification” when converted to a TIFF image TIFF (Tagged Image File Format) — a common nonproprietary image file format TABLE 2. CONVERSION METHODS FOR IMAGE FILE FORMATS Image File Conversion Format Extension Method TIFF Scanner PDF Scanner or Adobe Acrobat TABLE 1. OTHER FORMS OF FILE EXTENSIONS Native File Originating Format Extension Application PST Microsoft Outlook NSF IBM Lotus Notes XLS Microsoft Excel spreadsheet PPT Microsoft PowerPoint eyes of the beholder. On the basis of cost TABLE 1. OTHER FORMS OF FILE EXTENSIONS and recent case law, the current trend is for the techno-savvy litigator to obtain Native File Originating native files in discovery and then to con-Format Extension Application vert relevant native files into images only PST Microsoft Outlook if redaction is required or the document NSF IBM Lotus Notes is being introduced at trial. By initially XLS Microsoft Excel spreadsheet obtaining and working with native files, PPT Microsoft PowerPoint the litigator can minimize scanning and copying costs, thus saving money for the TABLE 2. CONVERSION METHODS FOR client. Given this trend, it seems likely IMAGE FILE FORMATS that (1) more evidence will be presented at depositions in native format, while the Image File Conversion litigator is still trying to gauge a docu-Format Extension Method ment’s relevance and use the metadata to TIFF Scanner his advantage and (2) the majority of evi-PDF Scanner or Adobe Acrobat dence will still be presented at trial in an image format, given the benefits outlined next. Native file format vs. image file being converted into an image file using Image files permit annotations (e.g., format a scanner or PDF-conversion software, redactions, notes, highlighting, and oth-A document’s native file format is the typically Adobe Acrobat. (See Table 2.) er forms of marking) and are most comformat in which it originated. For exam-This conversion process is known as pet-monly used in the courtroom with trial ple, a Word document in its native file rification. presentation software programs. However, format would have a DOC extension For purposes of this discussion, the when electronic evidence is converted to (e.g., “Hopp complaint.doc”). Table 1 term electronic evidence refers to docu-TIFF or PDF format and becomes an gives other examples of native file format ments saved in their native file formats, image file, the metadata that was once extensions. not image files such as TIFFs or PDFs. associated with that document is usually An image file format, as the term is used Once a document — or spreadsheet or no longer available. This change can be here, is more akin to a snapshot of a e-mail — has been petrified, it is no good if you are producing that informanative file. Two common image formats longer in its native format, and, there-tion, or bad if you are seeking it. are TIFF (Tagged Image File Format) fore, its original metadata cannot be In contrast, native files reveal metaand PDF (Portable Document Format).2 viewed. data usually not found in image files or You may already be familiar with these hard-copy documents. This metadata formats if you currently scan paper Advantages and Disadvantages can be used in a case to reveal prior docexhibits for your clients. Documents in Much like beauty, the benefits or ument drafts, which is handy for breach-TIFF or PDF format most likely existed drawbacks of presenting evidence in a of-contract cases, and timelines (e.g., as paper or in a native file format before native versus a petrified format are in the when did Smith actually open and read GLOSSARY electronic evidence — documents originating in a native, or computer-generated, format and containing metadata extension — a suffix, typically three characters long, following a “.” in a filename, which allows computer users and programs to recognize a file’s format; e.g., “resume.doc” hidden text — editorial comments or text editing changes electronically concealed from the reader image file format — a file type for displaying graphics, pictures, or petrified native files metadata — data about data; descriptive information and statistics embedded in a given computer file native file format — file format in which a computer file was created PDF (Portable Document File) — an image format created by Adobe Systems that allows users to view a file with its intended formatting without a need for the program in which the original file was created petrification — conversion of a file from its original or native format to an image format; also called “tiffification” when converted to a TIFF image TIFF (Tagged Image File Format) — a common nonproprietary image file format JOURNAL FOR THE REPORTING AND CAPTIONING PROFESSIONS /SEPTEMBER 2 0 0 4 56 http://www.jdsupra.com/post/an e-mail sent by Jones, advising they were doing something unlawful). In addition, comments and editing changes tracked during the document revision process may be exposed.3 (For an example, see “An Illustration of Hidden Text” below.) Electronic evidence in native file format is the functional equivalent of capturing each and every marked-up draft of a document, drafts that in a paper-based environment may have been consigned to the shredder. Such hidden text is unavailable, however, if the document is printed in hard copy or converted to an image file. Given the option, a safer course for the producing party would be to supply electronic documents in a petrified format. Bear in mind that in some instances certain metadata can be altered and, thus, rendered unreliable. Also, with the evolution of attendant legal and privacy issues, Microsoft and others have developed software that can remove hidden data from certain files.4 Nonetheless, electronic evidence is already having an affect on the form in which parties request and produce documents, and many unresolved issues exist regarding its use in litigation.5 As electronic evidence become more prevalent in litigation, we as court reporters will need to find ways to incorporate it into our work. JOURNAL FOR THE REPORTING AND CAPTIONING PROFESSIONS /SEPTEMBER 2004 57 ENDNOTES 1. Several Web sites, such as www.kenwithers.com, summarize recent case law and rules regarding electronic evidence. 2. An article titled “Compare and Contrast: PDF versus TIFF,” written by Wayne Smith, was published in the December 2002 issue of Law Technology News. It is also available online at www.lawtechnews.com. 3. For a real-life example of the perils of producing word processed documents in native file format for the opposing party, see “Hidden test shows SCO prepped lawsuit against BoFA,” http://news.com.com/2100-7344-5170073.html. 4. For information on removing metadata and to download a software tool that removes hidden data from various Microsoft files, go to http://office.microsoft.com/home/default.aspx and search “All Office Online” for “metadata” and “remove hidden data.” 5. For a discussion of the obligations that could possibly apply to the preservation and production of electronic data and files, see “The Sedona Principles: Best Practices, Recommendations and Principles for Addressing Electronic Document Production,” www.thesedonaconference.org/miscFiles/SedonaPrinciples200401. The venue and caption section of a pleading as it would appear in an image file or hard-copy document. The same document viewed in its native file format, revealing comments and editing changes, as well as the date, time, and author of such revisions. an e-mail sent by Jones, advising they Such hidden text is unavailable, however, data from certain files.4 Nonetheless, were doing something unlawful). if the document is printed in hard copy electronic evidence is already having an In addition, comments and editing or converted to an image file. Given the affect on the form in which parties changes tracked during the document option, a safer course for the producing request and produce documents, and revision process may be exposed.3 (For party would be to supply electronic doc-many unresolved issues exist regarding an example, see “An Illustration of Hid-uments in a petrified format. its use in litigation.5 As electronic eviden Text” below.) Electronic evidence in Bear in mind that in some instances cer-dence become more prevalent in litiganative file format is the functional equiv-tain metadata can be altered and, thus, tion, we as court reporters will need to alent of capturing each and every rendered unreliable. Also, with the evo-find ways to incorporate it into our marked-up draft of a document, drafts lution of attendant legal and privacy work. ¦ that in a paper-based environment may issues, Microsoft and others have develhave been consigned to the shredder. oped software that can remove hidden The venue and csaepcttiioonn of a pleading as it would appear in an ifmilea ogre hard-copy document. The same document viewed in its native file format, revealing comments and editing changes, as well as the date, time, and author of such revisions. ENDNOTES 1. Several Web sites, such as www.kenwithers.com, summarize recent case law and rules regarding electronic evidence. 2. An article titled “Compare and Contrast: PDF versus TIFF,” written by Wayne Smith, was published in the December 2002 issue of Law Technology News. It is also available online at www.lawtechnews.com. 3. For a real-life example of the perils of producing word processed documents in native file format for the opposing party, see “Hidden test shows SCO prepped lawsuit against BoFA,” http://news.com.com/2100-7344-5170073.html. 4. For information on removing metadata and to download a software tool that removes hidden data from various Microsoft files, go to http://office.microsoft.com/home/default.aspx and search “All Office Online” for “metadata” and “remove hidden data.” 5. For a discussion of the obligations that could possibly apply to the preservation and production of electronic data and files, see “The Sedona Principles: Best Practices, Recommendations and Principles for Addressing Electronic Document Production,” www.thesedonaconference.org/miscFiles/SedonaPrinciples200401. JOURNAL FOR THE REPORTING AND CAPTIONING PROFESSIONS /SEPTEMBER 2 0 0 4 57 http://www.jdsupra.com/post/

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